Government files amicus -- on DC's side!

Quick read: Gov't says, yes, it's an individual right. BUT we join with DC in asking Court to reverse the DC Circuit, because it applied strict scrutiny to the DC law. It should only have applied an intermediate standard. That is, the legal position of the US is that DC CIrcuit was wrong, a complete ban on handguns is NOT per se unconstitutional, it all depends on how good a reason DC can prove for it.

And this is filed in the name of the Solicitor General. Some quotes:

"When, as here, a law directly limits the private possession of “Arms” in a way that has no grounding in
Framing-era practice, the Second Amendment requires that the law be subject to heightened scrutiny that considers (a) the practical impact of the challenged restrictions on the plaintiff’s ability to possess firearms for lawful purposes (which depends in turn on the nature and functional adequacy of available alternatives), and (b) the strength of the government’s interest in enforcement of the relevant restriction.

The court of appeals, by contrast, appears to have adopted a more categorical approach. The court’s decision could be read to hold that the Second Amendment categorically precludes any ban on a category of “Arms” that can be traced back to the Founding era. If adopted by this Court, such an analysis could cast doubt on the constitutionality of existing federal legislation prohibiting the possession of certain firearms, including machineguns. However, the text and history of the Second Amendment point to a more flexible standard of review."

"The determination whether those laws deprive respondent of a functional firearm depends substantially on whether D.C.’s trigger-lock provision, D.C. Code § 7-2507.02, can properly be interpreted (as petitioners contend, see Br. 56) in a manner that allows respondent to possess a functional long gun in his home.8 And if the trigger-lock provision can be construed in such a manner, the courts below would be required to address the factual issue—not fully explored during the prior course of the litigation—whether the firearms that are lawfully available to respondent are significantly less suited to the identified lawful purpose (self-defense in the home) than the type of firearm (i.e., a handgun) that D.C. law bars respondent from possessing. To the extent necessary, further consideration of those questions should occur in the lower courts, which would be in the best position to determine, in light of this Court’s exposition of the proper standard of review, whether any fact-finding is necessary, and to place any appropriate limits on any evidentiary proceedings. Moreover, even if the existing record proved to be adequate, initial examination of those issues is typically better reserved for the lower courts."

"CONCLUSION

The Court should affirm that the Second Amendment, no less than other provisions of the Bill of Rights, secures an individual right, and should clarify that the right is subject to the more flexible standard of review described above. If the Court takes those foundational steps, the better course would be to remand. "

As I read this, the (Bush) Dept of Justice is asking that the Court hold it to be an individual right, but not strike the DC gun law, instead sending it back down to the trial court to take evidence on everything from how much the District needs the law to whether people can defend themselves without pistols and just what the DC trigger lock law means. THEN maybe it can begin another four year trek to the Supremes. That is, the DoJ REJECTS the DC Circuit position that an absolute, flat, ban on handguns violates the Second Amendment, and contends that it might just be justified, it all depends on the evidence.

There was a saying during my years in DC that the GOP operated on two principles: screw your friends and appease your enemies. Yup.

It appears that there primary purpose is to protect their pseudo-ban on full auto and other 'destructive devices'.

They make a good argument, to this layman. But it falls apart where they argue on one hand that 2A was in part intended to prevent govt. oppression and then on another that the govt can restrict dangerous arms from the people.

Perhaps our numbers are meant to counteract the standing army's advantage in firepower?

Oh and this argument is not intended as a vehicle for arguing the violent overthrow of the govt, but is meant in a purely philosophical manner for purposes of discussing the brief. (can't be tagged as a homegrown terrorist now can I?)

Bush is a typical Ivy League RINO...the BOR only applies to the elite. Hayek would say that we are well on our way to surfdom and he would be correct. A Rino's fondest wish is to convert us to an Oligarchy.

George W Bush appears to have entered that portion of his Presidency where he is more concerned about how he "looks" to history. Reagan did it when he signed the "Firearms Owners Protection Act" which BANNED new full autos for civilian ownership. Some protection.

And people have acted under the hilarity that GWB is a "conservative". He is not and never has been one. He was tolerable when R's were in charge of Congress, kinda. Now he's back to "making deals" and posturing.

A sad ..but not totally unexpected...day for the citizens of the USA. It shows the sick joke of our being concerned with the "war on terror" when our greatest threat is the corruption of the Constitution and the move toward a police state.
The power structure in America does not believe in the Constitution and this is just another proof of that. The Constitution has been overturned...we live in a country on a short road to facism.

Another thing. Don't look for the political candidates- republican or democrat to
give more than lip service to this--if even that. They are all happy to not have the supreme court
issue a ruling before the election. That way they can all avoid committment.

First, this brief was written with the collusion of the gun hating BATFAGS. Very hard to say if the person writing the brief was TRYING to spike the case. "It's a right, but if we make a law saying it's a reasonable restriction on the right, we can ban any damm thing we want". Is that a RIGHT?

It does stuff the contention that the RIGHT is a "collective" one. Now the BATFAGS have to deal with the "shall not be infringed" part and how making a law BANNING categories of guns (including machine guns) is "reasonable" if black powder single shots are still "legal".

And GWB is not running for office and hopefully will spend the rest of his time traveling on Air Force 1 and telling the Israeli's to divide Jerusalem and "fighting for peace" or whatever.

I have tried to make some sense of why this administration would make such an apparently boneheaded move. Don't they know that there's at least an even chance that the next president will be either Sen Clinton or Sen Obama? Don't they know that delaying this case means that it could be decided by a court with a new justice appointed by one of them? Don't they know that getting this decided before the election would lock the collective rights argument out of any future discussions?

Assume for a minute that perhaps they actually do understand all those things. What possible motive could there be for jeopardizing the opportunity to settle this now? I found one...it's oblique, and I think it gives WAY too much credit for savvy to the administration, but it's the first one I tried out that even marginally fit.

If the court kicks this can down the road and leaves the principal issues unresolved, that makes the election all the more important. Everyone with even a remote interest in maintaining an individual right to keep and bear arms, which based on a Zogby poll of last year looks like over 65%, will have to weigh their decision on who to vote for on that balance as well as on whatever other political, economic, or social issues drive them. The NRA will be even more energized - and new members will flock to the ranks, much as I did in the run-up to 2000. The argument that this election has implications for future freedom like few others in recent memory gains credibility, even though it has been all but worn out during every general election from 2000 onward.

Is it possible that this brief was submitted to awaken and unite gun owners in search of their Second Amendment rights and get them to vote realizing much more than the next president is at stake? It may be too clever by half, especially for this administration, but maybe they're better chess players than I've given them credit for...

The other reason is that perhaps they really do believe that "shall not be infringed" means something other than the plain words of the text reveal. The argument that this decision could also overturn all specific weapon type bans, including the current ban on newly manufactured automatic firearms, is a stretch based on the limited scope of the question being considered. Unfortunately, the inJustice Department appears to believe that the existing infringements are legitimate under "a more flexible standard of review." After the 2004 paper defending the individual right, it can hardly seem possible that between "people" and "not be infringed" there is time in six words to change from originalist to living documentarian.

Not because I think full auto weapons are particularly useful, but because the NFA gives government bureaucrats the wrongheaded idea that their authority flows from them to us rather than the other way around.

I now officially hate the "Republican" party more than I hated it before.

From now until election day, I will be giving a monthly monetary donation to whichever candidate shows strongest support for the 2nd Amendment.

If Fred Thompson does not start showing signs of life, I am now going to begin giving my monthly 2nd Amendment fund donation to the only other candidate out there who seems to care about protecting the 2nd Amendment: RON PAUL!

I hope Fred Thompson and Ron Paul get interviewed for their opinions on this latest trick being played by the solicitor general.

While this sort of idiocy does indeed heat up the blood, let's not talk--too quickly--about leaving the Republican party. Leave the party and join who? What? The Democrats would surely push matters as far as possible, potentially even past an absolute ban into seizure of firearms. That would be better than the DOJ stance?

There are ways to punish wayward Republicans, such as letting them know in clear terms that they won't get a penny of support unless this sort of betrayal is quickly reversed.

I'm Shocked! The Government arguing against a right reserved to the people? The Bill of Rights, intended to limit the power of the government and not the people. It sure does sound like history repeating itself.

And if the trigger-lock pro-vision can be construed in such a manner, the courts below would be required to address the factual is-sue—not fully explored during the prior course of the
litigation—whether the firearms that are lawfully available to respondent are significantly less suited to the identified lawful purpose (self-defense in the home) than the type of firearm (i.e., a handgun) that D.C. law bars respondent from possessing.9 .

So, Pardon me, but are they trying to imply that there should be some sort of "test" that determines what sort of arms are necessary to protect ourself or our homes?

And, if so and we reverse the argument, then, are they saying, if I build an actual castle that can only be breached by cannon, am I allowed then to own a cannon to defend my home?

whoever wrote this argument is an idiot. This is what happens when government tries to interpret things too narrowly, they always leave open the other options because its impossible write or imagine every possible weapon on the market or available in the future.

The framers did not specify "arms" because, even in their life time, "arms" had been technologically advanced to include much more accurate rifled barrels, though it was limited and bigger and better cannon. They were not using the generic "arms" because they never imagined machine guns, but because they could.

Or, maybe Jefferson, et al had never seen a re-printed Da Vinci drawing or the multi-barreled medieval matchlock (precursor to the gatling by a few hundred years).

The notion that the DOJ somehow represents the White House is ludicrous on the face of it. The DOJ is still a creature of the Clinton administration, dating from the moment that Clinton fired all the US attorneys (one of his first acts as President, and totally unprecedented in American history). GWB, for all his supposedly fascist tendencies, refused to repeat this travesty.

The only good thing about this is that the DOJ argument is extraordinarily weak. Do I understand correctly that the DOJ is arguing that the right to bear arms is an individual right? That would be progress. If the bureaucrats are finally willing to concede that the Bill of Rights means what it obviously means, namely that the rights stated are absolute rights of the states and the people, then the battle is largely won. Maybe next the Court will actually uphold the Ninth and Tenth Amendments. I can't see any way that the Court will not uphold these rights, but I admit that I've been gravely disappointed before.

That is just garbage. So scared of a categorical view, that they insult the intelligence of the SC. And what about modern means of freedom of the press, are they somehow more subject to regulation than what was commonplace at the time of ratification? Twisted logic.

First, I just read Paul Clement's bio and saw that he was a clerk for Judge Silberman who wrote the Heller decision and a clerk for Justice Scalia. I wonder if the SCOTUS will give it any more weight because of this.

Second, what the hell is the Chief Counsel for BATFE doing signing the brief in the Heller case? I would have kept those bumbling idiots as far away from any gun case as I could.

Hmm, on one hand, it almost seems like they want to remand it so the lower court who can then come up with a bulletproof standard which will convince Kennedy.

On the other, it sounds like they're more worried about their precious machine gun ban. Which for the life of me I cannot understand how it's so "necessary" for "public safety," being that only one person was ever killed by a registered machine gun before the ban. And the killer in that case was a LEO who would be exempt from the ban.

Were the ban so "necessary," it wouldn't have been sneaked into the GOPA in the middle of the night.

Not surprising. It's not even the only hosing for gun owners emanating from Bush this week.

Republicans including Tom Coburn (!) and John Boehner (who normally never lifts a finger for anything that's not a priority for the K Street crowd) joined with Chuck Schumer and the far-left end of the Dems, to ram through the Veterans Disarmament Act, and Bush apparently is going to sign it.

This is the law that restores the legal basis for the BATFE policy of seizing the weapons from any combat vets who have sought PTSD treatment. One reason I give the VA an extremely wide berth... they can't be trusted to act in a patient's, rather than government's, best interest, in those frequent cases where the interests diverge.

Remember that when Ashcroft left and Gonzales came in, a pro-2A stalwart (and his people) was replaced at Justice by an anti-gun liberal (and his people). Mukasey seems to be following Gonzo, not Ashcroft.

After reading it again, it appears the arguments the Government makes are ones that are not before the court. Whether Felons can posses firearms, machine guns etc. is not a question before the court. It's a side issue. The issue is can Heller posses a handgun. That is what is before the court in the Record. This is a narrow question and one which this Court can decide now. Heller is not a Felon. Heller is not asking for a machine gun. Heller is only asking to posses the most effective firearm for self-defense for city dwellers. Everything else the Government talks about is best saved for another day as stated by the Appeals Court.

The Republican Party has put us all up for sale since Bush stepped into the White House. He is the worst president we have ever had while possibly the best president Mexico has had in half a century. We are all screwed and the entire Republican Party has done the screwing.

Warning to the Republican Party.
The gun forums are burning up with this guys.
This was the last straw. A lot are saying if
anyone but FDT gets the nod, Gun owners will either stay home or vote for Ron Paul if he goes third party candidate. No joke. No more voting for RINOs. Ever.

I'm actually a little surprised at just how weak the DOJ/BATFE's disagreement with the DC Appeals Court actually is.

They spend a considerable amount of time pointing out that the 2A is unambiguously an individual right, point out that the militia is composed of the body of the people who were expected to show up with their own weapons which were of the same type in common use at the time, and that the 2A was also intended to provide protection from the abuses of the federal government itself...

...and then turn right around and say that it's a reasonable regulation for the government to decide which types of "arms" are okay for the public to own.

The right protected by the Second Amendment is a right to “keep and bear Arms,” not a right to possess any specific type of firearm. A ban on a type or class of firearms, such as machineguns, is not unconstitutional just because it is categorical. A number of factors—including whether a particular kind of firearm is commonly possessed, poses specific dangers, or has unique uses, as well as the availability of functional alternatives—are relevant to the constitutional analysis.

History also supports that conclusion. Because
Founding-era militia members were expected to procure their own firearms and to bring those guns when called to service, see p. 16, supra, the militia could not have been “well regulated” if individuals had unrestricted freedom to choose which “Arms” they would possess. Rather, it was essential to the effective operation of the militia as then constituted that government officials be authorized to specify the weapons that individual members would be required to procure and maintain.

The entire thrust of their argument seems to be, "sure, the second amendment protects a pre-existing individual right which was created in part so that the citizenry should have military parity with any standing army that might exist, but we still don't want you to have machine guns, so nyah-nyah".

So, the Bush Administration DoJ (don't they wish they cleaned out the Clintonistas years ago?) says that the 2nd Amendment protects an individual right, but DC can impose a collective ban on firearms.

Maybe instead of wasting his time on the Middle East Peace Process (Iraq has a more effective peace process which consists of 'KILL the BAD guys'), Bush ought to control his administration here at home.

Let's see, Bush the Elder had 4 years as President, which gave us 8 long years of Clinton. Will the GOP ever be able to recover from 8 years of Bush 2, The Return of the Undead? The Bush Family business is politics, Dubya has destroyed his Family business.

How is this news? From the start, the Bush administration has taken the position that 'the RKBA is an individual right and so what?' Individual rights don't matter to those who govern because to them, "individual" means "powerless."

The first 20 pages of the brief are pretty good.
The citation to Burdick v Takushi is an interesting one. Burdick is in turn citing Anderson v Celebrezze, for the 4 part balancing test used in ballot access cases. Anderson won his case.
Also, the Anderson standard has been modified by Norman v Reed (severe burdens get strict scrutiny) and Burdick (trivial burdens get lax scrutiny.)
The DC gun handban is a severe burden on the right to carry. Perhaps triggerlocks are a more modest burden, and would get Anderson balancing review under that framework. None of the DC regulations strike me as trivial. Rokita, the voter ID case just argued, may give us more feedback on this standard of review. The court below erred in applying Burdick's lax review standard, so the court took the case to do a better job, although we don't know yet which way it will come down.
- Robbin Stewart

I don't think the government's action has to do with hostility to gun rights per se. I think it has more to do with a mindset that insists on a very broad construction of the Constitution. If the DC Circuit's insistence on a narrow reading of the Second Amendment (that is, that it means what it says, not what advocates of a strong central government would like it to mean) is allowed to stand, then much of the federal government's apparatus and power comes into question via the Ninth and Tenth Amendments. If those two Amendments are taken to mean what they say, then much of what Uncle Sam does is unconstitutional on its face, and the whole edifice of federal power, dating back to the Progressive Era and New Deal, comes crashing down.

Hard to believe I once admired W! Like Colin, Condolisa & other "Republicans" they may have a pet cause, like Iraq for W, that they hang tough on; but when push comes to shove, they can be counted on to give in to the faceless bureaucracy that forever runs DC. It's like Israel (almost) has a right to exist; we (almost) have a right to be armed; political speech is (almost) protected; We are (almost) a country with borders worth defending. Anything else you intend to surrender for us today George?

+1 on the post above. Absolutely correct. While guns are very very very important to me, I'm not a single issue voter. But just about every other issue this administration has worked on has turned out bad.

We could have gotten amnesty, Education Bill, Medicare expansion, abandoning Israel, Campaing Finance Reform signed, and just about everything else with a Democrat.

I know some of the posts above are trying to find the sunny side of this but there is no sunny side. The issue of machine gun bans was not even raised in the D.C. gun ban. The DOJ didn't need to say anything. Sure, they may not come out directly and say the handgun ban is constitutional but they argue it could be. They should have just kept their mouths shut.

You've got to be kidding me. While I have not considered myself a Republican for some time, I usually hold my nose and vote for them come election time. They are really making it harder and harder to do that.